Senior judges are facing a major dilemma caused by a rising number of constitutional challenges to judge-approved guidelines slashing damages awards for personal injuries, primarily minor injuries.
Two more challenges were initiated last Friday, bringing to at least five the number taken so far over the constitutionality of the laws underpinning the guidelines, which became operational in April after they were approved by a majority of the Judicial Council, made up of the State's judges.
The number of challenges is expected to at least double over the coming weeks.
The applicants’ claims include that the application of the guidelines breaches the separation of powers between the legislature and the judiciary and their constitutional rights to bodily integrity, property and equality. It is also claimed the relevant laws are incompatible with the fair trial right provisions of the European Convention on Human Rights
The actions are expected to be case managed by the High Court with 'lead' challenges likely to be selected.
Statement of opposition
The State is understood to be taking the cases very seriously and its statement of opposition is expected shortly. That is likely to centre on arguments that, because judges have discretion to depart from the guidelines provided they give clear reasons for doing so, there is no breach of the separation of powers or the other rights at issue.
Because almost all judges participated in the Judicial Council’s 83/63 vote on the guidelines last March, the challenges are expected to be heard by a judge or judges from the small number of recently appointed High Court judges not involved in the vote.
Whatever outcome emerges from the High Court hearing, it is bound to be appealed, most likely to the Supreme Court because of the novelty of the constitutional issues involved. That poses a dilemma because almost all of the judges of both the Supreme Court and Court of Appeal voted on the guidelines.
Sources believe the appeal court will nonetheless find a means of dealing with such an unprecedented situation. “A solution will be found because it has to be,” one lawyer insisted.
The guidelines were welcomed by the insurance industry, although some campaigners for lower awards maintained they did not go far enough.
The guidelines have attracted particular criticism from some personal-injuries lawyers and some judges. They have led to tensions and ill-feeling between some lawyers who strongly oppose them and other practitioners who consider cuts in awards were inevitable, irrespective of how they were introduced. “Some friendships have become very strained,” a source said.
The challenges to their constitutionality are against the Judicial Council and various State parties on behalf of a number of plaintiffs seeking damages for personal injuries. The Chief State Solicitor is believed to be running the core defence of the cases.
The applicants' arguments include that the provisions of the Judicial Council Act 2019, under which the Judicial Council approved the guidelines, effectively amount to judge-made law, rather than legislation promulgated by the Oireachtas, in breach of the separation of powers.
It is claimed the Constitution does not permit judges to have a role in either making or adopting guidelines for mandatory application to cases which judges are not themselves deciding.
The effect of the alleged unconstitutionality, it is claimed, is that the guidelines must fall and the personal injury claims must be assessed under the book of quantum, which had provided for higher awards for a range of minor injuries.
The claims of unconstitutionality are made in respect of certain provisions of the Judicial Council Act, the Personal Injuries Assessment Board Act, the Civil Liability and Courts Act and the Family Leave and Miscellaneous Provisions Act.
Some of the applicants also maintain their claims predate the application of the guidelines and should be assessed by the Personal Injuries Assessment Board (PIAB) under the book of quantum.
The guidelines replaced the book of quantum, which set general guidelines for personal injury awards. They were compiled by the Personal Injuries Guidelines Committee of the Judicial Council, headed by High Court president Mary Irvine, after it examined awards here and some other countries.
Under the guidelines, certain awards, particularly for minor whiplash-type injuries, were reduced to a level between awards in Northern Ireland and awards in England and Wales. Data obtained by the committee suggested Irish whiplash awards were 1.2 to 1.3 times higher than in Northern Ireland, and 1.9 to 2.3 times higher than in England and Wales.
A whiplash injury from which a full recovery is made within six months will now get an award between €500 and €3,000, with up to €12,000 for recovery within two years. The book of quantum provided no minimum and for up to €19,400 where a full recovery is expected.
The guidelines apply to new cases coming before PIAB after the guidelines became operational. They impact most on High Court personal injuries litigation, where awards and legal costs are highest but, because they set clear awards brackets for specific injuries, they have meant more settlements and less litigation in all courts.